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TMI Blog2022 (4) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under sections 138 read with section 142 of the Negotiable Instruments, wherein summons has been issued. It is stated that the appellant is the son of the deceased complainant Keshavlal Vallabhdas Kamdar and legal representative of the deceased complainant and power of attorney of other heirs and hence he may be substituted in the complaint as son of the complainant and the complaint may be continued. 3. The said complaint was opposed by the original accused nos. 1 and 2 by filing objections. 4. After hearing both the sides and considering the facts and circumstances of the case, the learned trial court, vide impugned judgment and order dated 20/4/2005 rejected the application Ex.53 and acquitted the accused in the complaint filed under section 406, 420 and 114 of the Indian Penal Code and under section 138 read with section 142 of the Code of Criminal Procedure, against which the present appeal has been preferred by the appellant - son of the original complainant. 5. Mr. Pranav Raval, learned advocate for the appellant has vehemently submitted that the trial court has materially erred in rejecting the application of the appellant to be joined as complainant, upon the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. He has also relied upon the decision of co-ordinate Bench of this Court (Coram: R.P. Dholaria, J.) in Criminal Appeal No. 2069 of 2018 dated 06/08/2019 wherein the co-ordinate bench reiterated the law laid down by this Court in the case of Anil G. Shah (supra). 7. Per contra, Mr. Jitendra Malkan, learned advocate for the private respondents Nos. 1, 2 and 3 - original accused has submitted that there is no provision in the Code of Criminal Procedure for joining heirs. As per the provisions of the Code of Civil Procedure, heir is required to be joined within 90 years and complainant died on 4/10/2001 and application is filed for joining heir on 2/9/2003 and hence the application is not maintainable. Further, it is also not disclosed that how many heirs the deceased complainant has and hence also the application is required to be rejected. He has relied upon the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its judgment delivered on 06/08/2019. From the aforesaid decision of this Court in the case of Anil G. Shah (supra) it is clear that once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. 9. Now, so far as the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna (supra) relied upon by the learned advocate for the private respondents is concerned, in the said case complaint was filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 on 6.6.2001. It was registered as C.C. No. 368 of 2001. The original complainant - Rami Reddy expired on 28.10.2003. Respondents herein filed an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Apex Court that the learned Magistrate in terms of sub-Section (1) of Section 256 exercises wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate. It is further held by the Supreme Court that the provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate. It is further held by the Hon'ble Supreme Court that he had to remain present in court. He attended the court on not less than 20 occasions after the death of the original complainant. If in the aforem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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